And

———- , having its main place of business at ———- (herein referenced as “the Partner”) represented by———- , its ———- .

(Collectively “the Parties”)

1. Proposed Transaction.

The Parties wish to exchange certain confidential and proprietary information for the limited purpose of evaluating their interest in entering into a mutual business venture (the “Proposed Transaction”) that should lead to another agreement between the Parties, non excluding this Agreement (“the Main Agreement”). As used in this Agreement, the Parties receiving and disclosing Confidential Information shall be referred to as the “Receiving Party” and the “Disclosing Party”, respectively.

2. Confidential Information.

As used in this Agreement, “Confidential Information” means all information, whether of a technical, business or any other nature, disclosed at any time, in any manner, whether verbally, electronically, visually or in a written or other tangible form, which is either identified as confidential or proprietary or which should be reasonably understood to be confidential or proprietary in nature with respect to the Disclosing Party, an Affiliate or a third party.
Confidential Information shall also include (a) the fact that discussions or negotiations are taking place between the Parties concerning the Proposed Transaction; (b) any of the terms, conditions or other facts with respect to any such Proposed Transaction, including the status thereof or the cessation of discussions or negotiations between the Parties; and (c) the fact that this Agreement exists or that Confidential Information has been or may be made available to either Party.

3. Exceptions.

Confidential Information does not include any information that (a) is now or subsequently becomes publicly available without breach of this Agreement; (b) can be demonstrated to have been lawfully known to the Receiving Party at the time of its receipt from the Disclosing Party; (c) is rightfully received by the Receiving Party from a third-party who did not acquire or disclose such information by a wrongful or tortuous act; or (d) can be shown by documentation to have been independently developed by the Receiving Party without reference to any Confidential Information.

4. Obligations.

The Receiving Party shall (a) keep the Disclosing Party’s Confidential Information in strict confidence and (b) not disclose any Disclosing Party’s Confidential Information to anyone without the Disclosing Party’s prior written consent. The Receiving Party shall not use, or permit others to use, Confidential Information for any purpose other than for evaluating the Proposed Transaction.

5. Measures.

The Receiving Party shall take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own Confidential Information of a similar nature, which shall not be less than the care a reasonable person would use under similar circumstances.

6. Permitted Disclosures.

The Receiving Party shall restrict the possession, knowledge, development and use of the Disclosing Party’s Confidential Information to the people signatories to this agreement.

7. Compelled Disclosure.

Each Party may disclose Confidential Information to the extent necessary pursuant to applicable federal, state or local law, regulation, court order, or other legal process, provided the Receiving Party has given the Disclosing Party prior written notice of such required disclosure and, to the extent reasonably possible, has given the Disclosing Party an opportunity to contest such required disclosure at the Disclosing Party’s expense.

8. Notification.

The Receiving Party shall notify the Disclosing Party immediately in the event the Receiving Party learns of any unauthorized possession, use or knowledge of the Disclosing Party’s Confidential Information or materials containing such Confidential Information, and will cooperate with the Disclosing Party in any proceeding against any third parties necessary to protect the Disclosing Party’s rights with respect to the Confidential Information.

9. Ownership.

The Disclosing Party, or the relevant third party, as the case may be, retains all right, title and interest in and to its Confidential Information, including any intellectual property rights thereof, and the Receiving Party shall have no rights, by license or otherwise, to use or disclose the Confidential Information except as otherwise expressly provided herein. For the purposes of this Agreement, intellectual property rights shall mean all those rights and interests, whether by statute or under common law, relating to copyrights, patents, trademarks, trade secrets, or any similar rights.

10. Term & Termination.

The obligations under this Agreement shall take effect as of the last date set forth below and continue for a period of one (1) year after the Termination of the Main Agreement. Either Party may terminate this Agreement at any time by written notice to the other. However, either Party understand that this Agreement forms an essential part of the Main Agreement and its Termination may lead to immediate termination of the Main Agreement.
Notwithstanding any such expiration or termination, each Party’s respective confidentiality obligations under this Agreement shall survive, with respect to any Confidential Information received prior to such expiration or termination, for a period of three (3) years from the date of disclosure of such Confidential Information, or such longer period as required by law, regulation, or court order (e.g., trade secrets law, administrative rule, protective orders, etc….) The Receiving Party shall promptly return or certify the destruction of all tangible material embodying Confidential Information (in any form and including, by way of example and not limitation, all summaries, copies and excerpts thereof) upon the earlier of (a) the completion or termination of the dealings between the Parties, or (b) the Disclosing Party’s written request.

11. Injunctive Relief.

The Parties acknowledge that disclosure or use of Confidential Information in violation of this Agreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or are an inadequate remedy. Therefore, the Disclosing Party shall have the right, in addition to its other rights and remedies, to seek and obtain injunctive relief for any violation of this Agreement. The Receiving Party shall pay the Disclosing Party its attorneys fees in the event it prevails in any action to enforce this Agreement against the Receiving Party.

12. Disclaimers.

CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. THE DISCLOSING PARTY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SUITABILITY AND NON-INFRINGEMENT. NEITHER PARTY SHALL BE UNDER ANY LEGAL OBLIGATION OF ANY KIND WITH RESPECT TO THE PROPOSED TRANSACTION, INCLUDING AN OBLIGATION TO NEGOTIATE OR CONCLUDE A DEFINITIVE AGREEMENT THEREOF.

13. Assignment.

Neither Party may assign, delegate or otherwise transfer this Agreement or any rights or obligations hereunder, except to such Party’s Affiliates or successors in interest, without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Any attempt to effectuate an assignment, delegation or transfer in violation of this Section shall be null and void. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of the Parties.

14. Waiver.

Any failure to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.

15. Severability.

Each provision of this Agreement shall be severable from every other provision for the purpose of determining the legal enforceability of any specific provision.

16. Notices.

Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when delivered personally; (b) by overnight courier, upon written verification of receipt; (c) by telecopy or facsimile transmission, upon acknowledgment of receipt of electronic transmission or (d) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth below or to such other address as either Party may specify in writing.

17. No Agency.

Nothing herein shall be construed as creating a partnership, joint venture, an employment relationship or an agency relationship between the Parties, or as otherwise authorizing either Party to act for the other. The Parties hereto are independent contractors for all purposes.

18. General.

This Agreement may be executed in two (2) counterparts, and shall be governed by the law of the Netherlands, which courts shall be competent in case of a dispute.